Citation Nr: 0710886
Decision Date: 04/12/07 Archive Date: 04/25/07
DOCKET NO. 91-17 365 ) DATE
)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Cheyenne, Wyoming
THE ISSUES
1. Entitlement to service connection for major depression,
claimed as secondary to the service-connected degenerative
disc disease of the lumbar spine.
2. Entitlement to an increased rating for the service-
connected degenerative disc disease of the lumbar spine,
currently evaluated as 20 percent disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
J. H. Nilon, Associate Counsel
INTRODUCTION
The veteran had active military service from November 1972 to
December 1973.
This matter originally came before the Board of Veterans'
Appeals (Board ) on appeal from a March 1990 RO rating
decision that increased the evaluation for the veteran's
service-connected low back disability from 10 percent to 20
percent.
In July 1992 the Board granted service connection for
degenerative disc disease of the lumbar spine but remanded
the case for further review regarding the issue of evaluation
of the already service-connected back disability.
Also on appeal is a July 1999 RO rating decision that denied
service connection for depression as secondary to the
service-connected degenerative disc disease of the lumbar
spine.
In August 2003, during the pendency of this appeal, the RO
issued a rating decision granting service connection for
neuropathy of the right and left lower extremities secondary
to the service-connected degenerative disc disease of the
lumbar spine.
The veteran did not appeal either the effective date or
disability ratings assigned.
The two issues on appeal were remanded for further
development in November 2000 and July 2004.
FINDINGS OF FACT
1. All notification and development action needed to fairly
adjudicate the issues on appeal has been accomplished.
2. The veteran is not diagnosed with any current innocently-
acquired psychiatric disorder, including major depressive
disorder.
3. The chronic orthopedic manifestations of the service-
connected degenerative disc disease consist of moderate
limitation of motion due to pain, with flexion greater than
50 degrees and no ankylosis to any degree; the chronic
neurological manifestations of his disability are separately
compensated.
CONCLUSIONS OF LAW
1. The veteran does not have a current disability manifested
by major depressive disorder that is due to or aggravated by
his military service or is proximately due to or the result
of his service-connected degenerative disc disease.
38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2006);
38 C.F.R. §§ 3.303, 3.304, 3.310(a) (2006).
2. The criteria for a rating higher than 20 percent for the
service-connected degenerative disc disease of the lumbar
spine are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107
(West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 4.1,
4.3, 4.20, 4.25, 4.71, 4.71a, Diagnostic Codes 5292, 5293,
5295 (2000-2004); General Rating Formula for Diseases and
Injuries of the Spine (as in effect since September 26,
2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
Initially, the Board notes that, in November 2000, the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000), was signed into law. See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To
implement the provisions of the law, VA promulgated
regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)
(2003).
VCAA and its implementing regulations include, upon the
submission of a substantially complete application for
benefits, an enhanced duty on the part of VA to notify a
claimant of the information and evidence needed to
substantiate a claim, as well as the duty to notify the
claimant what evidence will be obtained by whom. 38 U.S.C.A.
§ 5103(a); 38 C.F.R. § 3.159(b).
In addition, they define the obligation of VA with respect to
its duty to assist a claimant in obtaining evidence. 38
U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).
Considering the claims on appeal in light of the duties
imposed by VCAA and its implementing regulations, the Board
finds that all notification and development action needed to
fairly adjudicate the claims on appeal has been accomplished.
The rating decisions on appeal were issued prior to enactment
of the VCAA. In July 2004 the Appeals Management Center
(AMC) sent the veteran a letter advising him that the
establish entitlement to a higher rating for a service-
connected disability, the evidence must show that the
disability has gotten worse; the letter also advised the
veteran that to establish entitlement to secondary service
connection the evidence must show the claimed physical or
mental condition and a relationship between the claimed
condition and a service-connected disability. The veteran
was afforded an opportunity to respond before the issuance of
the Supplemental Statement of the Case (SSOC) in October
2006.
The Board accordingly finds that the veteran has received
sufficient notice of the information and evidence needed to
support his claims on appeal, and has been afforded ample
opportunity to submit such information and evidence.
The Board also finds that the letter cited above satisfies
the statutory and regulatory requirement that VA notify a
claimant what evidence, if any, will be obtained that the
claimant, and what evidence, if any, will be obtained by VA.
See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002)
(addressing the duties imposed by 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b)).
The July 2004 letter cited above informed the veteran that VA
is responsible for getting relevant records held by any
Federal agency (including military records, VA treatment
records, and Social Security Administration records) and that
VA would make reasonable efforts to obtain relevant records
from non-Federal agencies and entities if authorized by the
veteran to do so.
The July 2004 letter advised the veteran of the types of
evidence acceptable to show entitlement to the benefits
claimed. The letter asked the veteran to identify any
agencies having additional relevant evidence, and to
authorize VA to obtain relevant evidence from any non-Federal
agencies.
The July 2004 letter also specifically stated, "If there is
any other evidence or information that you think will support
your claim, please let us know. If you have any evidence in
your possession that pertains to your claim, please send it
to us."
In the decision of Pelegrini v. Principi, 18 Vet. App. 112
(2004), the United States Court of Appeals for Veterans
Claims (Court) held that proper VCAA notice should notify the
veteran of: (1) the evidence that is needed to substantiate
the claim(s); (2) the evidence, if any, to be obtained by VA;
(3) the evidence, if any, to be provided by the claimant; and
(4) a request by VA that the claimant provide any evidence in
the claimant 's possession that pertains to the claim(s). As
explained, all four content-of-notice requirements have been
met in this appeal.
Pelegrini also held that the plain language of 38 U.S.C.A.
§ 5103(a) (West 2002), requires that notice to a claimant
pursuant to VCAA be provided "at the time" that, or
"immediately after," the Secretary receives a complete or
substantially complete application for VA-administered
benefits.
In that case, the Court determined that VA had failed to
demonstrate that a lack of such pre-adjudication notice was
not prejudicial to the claimant.
As indicated, in the matters now before the Board, documents
fully meeting the VCAA's notice requirements were provided to
the veteran after the rating decisions on appeal. This is
logical, since the rating decisions on appeal were issued
prior to enactment of VCAA.
However, the Board finds that the lack of full pre-
adjudication notice in this appeal has not, in any way,
prejudiced the veteran. The Board notes that the Court has
held that an error in the adjudicative process is not
prejudicial unless it "affects a substantial right so as to
injure an interest that the statutory or regulatory provision
involved was designed to protect such that the error affects
'the essential fairness of the [adjudication].'" Mayfield
v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other
grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir.
2006).
The Board finds that, in this appeal, the delay in issuing
section 5103(a) notice was not prejudicial to the veteran
because it did not affect the essential fairness of the
adjudication, in that his claims were fully developed and
readjudicated after notice was provided.
As indicated, the RO has given the veteran notice of what was
required to substantiate the claims on appeal, and the
veteran was afforded opportunity to submit such information
and/or evidence.
Neither in response to the document cited above, nor at any
other point during the pendency of this appeal, has the
veteran or his representative informed the RO of the
existence of any evidence-in addition to that noted below-
that needs to be obtained prior to appellate review.
Hence, the Board finds that any failure on VA's part in not
completely fulfilling the VCAA notice requirements prior to
the RO's initial adjudication of the claims is harmless. See
ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir.
1998); Cf. 38 C.F.R. § 20.1102 (2006).
More recently, the Board notes that, on March 3, 2006, during
the pendency of this appeal, the Court issued a decision in
the consolidated appeal of Dingess/Hartman v. Nicholson, 19
Vet. App. 473 (2006).
The Court held that the VCAA notice requirements of 38
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five
elements of a service connection claim (veteran status,
existence of a disability, connection between the veteran's
service and that disability, degree of disability, and
effective date pertaining to the disability).
In this appeal, the veteran's status is not at issue, and as
indicated the AMC letter in July 2004 advised the veteran of
the second and third Dingess elements (existence of a
disability, connection between the veteran's service and that
disability).
There is no indication that the veteran has been advised of
the fourth and fifth Dingess elements (degree of disability,
and effective date pertaining to the disability). However,
the Board's action below denies service connection for the
claimed major depressive disorder, so no disability rating or
effective date will be assigned. Accordingly, there is no
possibility of prejudice under the notice requirements of
Dingess in regard to the claims for service connection.
The Dingess decision also held that, in rating cases, a
claimant must be informed of the rating formulae for all
possible schedular ratings for an applicable rating code.
As regards the claim for compensable initial rating on
appeal, the Board finds that this was accomplished in the
SSOC of October 2006; this suffices for Dingess.
Hence, there is no possibility of prejudice under the notice
requirements of Dingess as regards the claims for increased
initial rating.
The Board also notes that there is no indication whatsoever
that any additional action is needed to comply with the duty
to assist the veteran in connection with any of the claims on
appeal.
The veteran's service medical records, and extensive post-
service VA and private medical records, have been associated
with the claims file.
Neither the veteran nor his representative has identified,
and the file does not otherwise indicate, that there are any
other VA or non-VA medical providers having additional
records that should be obtained before the claims are
adjudicated, and in fact the veteran advised VA in April 2004
that he has no further evidence to submit prior to the
Board's review.
The veteran has been afforded appropriate VA medical
examinations in support of his claims, and he has been
afforded a hearing before the RO's Decision Review Officer,
during which he presented oral argument in support of his
claims.
The Board notes at this point that the veteran's
representative filed an Informal Hearing Presentation in
February 2007 asking that the veteran be reexamined by a
different psychiatric examiner, since the veteran believes
that the VA psychologist who examined him on three occasions
(October 2002, June 2003, and March 2005) is biased against
the veteran.
However, the Board has carefully reviewed the examinations
and opinions written by the VA psychologist in question, and
finds no indication therein that the examiner was other than
objective and competent.
Under these circumstances, the Board finds that the veteran
is not prejudiced by the Board proceeding, at this juncture,
with an appellate decision on both of the claims herein
decided.
II. Analysis
A. Service connection for major depressive disorder
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in the line of duty, or from aggravation of a preexisting
injury suffered of disease contracted in line of duty. See
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
Service connection may be granted for a disability diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disability is due
to disease or injury that was incurred in or aggravated by
military service. 38 C.F.R. § 3.303(d).
Service connection also may be granted for disability that is
proximately due to or the result of a service-connected
disability. See 38 C.F.R. § 3.310(a). The controlling
regulation has been interpreted to permit a grant of service
connection not only for disability caused by a service-
connected disability, but for the degree of disability
resulting from aggravation of a nonservice-connected
disability by a service-connected disability. See Allen v.
Brown, 7 Vet. App. 439, 448 (1995).
When service connection is thus established for a secondary
condition, the secondary condition shall be considered a part
of the original condition. See 38 C.F.R. § 3.310(a) (2002);
Harder v. Brown, 5 Vet. App. 183, 187 (1993).
The veteran's service records do not show, and the veteran
does not assert, that his claimed major depressive disorder
became manifest during military service. Instead, he
contends that the claimed major depressive disorder is caused
by his service-connected degenerative disc disease of the
lumbar spine.
To prevail on the issue of secondary service causation, the
record must show (1) evidence of a current disability, (2)
evidence of a service-connected disability, and (3) medical
nexus evidence establishing a connection between the current
disability and the service-connected disability. Wallin v.
West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet.
App. 513, 516-17 (1995).
In this case, the record does not show that the veteran
currently has major depressive disorder or chronic
depression.
The veteran had VA inpatient psychiatric treatment in January
1992. The discharge diagnosis was that of alcohol dependence
and probable recurrent major depression.
The veteran was evaluated by a VA psychologist in October
2002. The examiner's assessment was that of pedophilia and
major depressive disorder related both to back pain and to
pedophilic urges.
The veteran was examined by the same VA psychologist in June
2003. The examiner's assessment was that of pedophilia and
antisocial traits. The same VA psychologist examined the
veteran once again in March 2005. The examiner's assessment
was that of pedophilia and history of antisocial traits.
The veteran was examined by a VA orthopedic examiner in March
2005, who stated an opinion that the reported depression was
not related to or caused by or a result of the veteran's
degenerative disc disease.
In an undated addendum, the VA psychologist who had performed
the examinations in October 2002, June 2003 and March 2005
stated that the veteran did not have chronic depression.
The veteran was depressed in 2002, due equally to back pain
and to having been incarcerated for 10 years for statutory
rape, but he subsequently stopped working in construction
(which had been hurting his back) and also stopped contact
with adolescent females; he also underwent psychotherapy. As
a result, the veteran's depression cleared and had not
returned by the time of the last examination in March 2005.
Congress specifically limits entitlement to service-connected
disease or injury where such cases have resulted in a
disability; in the absence of a proof of present disability
there can be no claim. Brammer v. Derwinski, 3 Vet. App.
223, 225 (1992).
As there is no evidence of a current innocently-acquired
psychiatric disorder on which a claim for service connection
can be based, the Board finds that the veteran has not
presented a claim.
In reaching this conclusion, the Board has considered the
applicability of the benefit-of-the-doubt doctrine. In this
case the evidence preponderates against the claim, and the
benefit-of-the-doubt rule is not for application. See
38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v.
Derwinski, 1 Vet. 49, 55 (1990).
B. Evaluation of service-connected degenerative disc disease
Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities, which assigns ratings
based on average impairment of earning capacity resulting
from a service-connected disability. 38 U.S.C.A. § 1155;
38 C.F.R. Part 4.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating; otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7. After careful consideration of
the evidence, any reasonable doubt remaining is resolved in
favor of the veteran. 38 C.F.R. § 4.3.
The veteran's entire history is to be considered when making
disability evaluations. See generally 38 C.F.R. § 4.1;
Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where
entitlement to compensation already has been established and
an increase in the disability rating is at issue, it is the
present level of disability that is of primary concern. See
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
The veteran's disability has been rated under the criteria
for intervertebral disc syndrome (IVDS), but can
alternatively be rated under the criteria for limitation of
motion or lumbosacral strain. As noted hereinbelow, the
rating criteria for diseases and injuries of the spine,
including IVDS and limitation of motion, have changed several
times during the pendancy of this appeal.
Where a law or regulation changes after a claim has been
filed, but before the administrative or judicial appeal
process has been concluded, the version most favorable to the
appellant applies, unless Congress provided otherwise or
permitted VA to do so. Marcoux v. Brown, 9 Vet. App. 289
(1996); VAOPGCREC 11-97 (Mar. 24, 1997).
However, revised statutory or regulatory provisions may not
be applied to any time period prior to the effective date of
the change. 38 U.S.C.A. § 7104(c); VAOPGCPREC 3-2000 (April
10, 2000); Rhodan v. West, 12 Vet. App. 55, 57 (1998).
As there is no indication that the revised criteria are
intended to have a retroactive effect, the Board has the duty
to adjudicate the claim only under the former criteria for
any period prior to the effective dates of the new diagnostic
codes, and to consider the revised criteria for the period
beginning on the effective dates of the new provisions. See
Wanner v. Principi, 17 Vet. App. 4, 9 (2003); DeSouza v.
Gober, 10 Vet. App. 461, 467 (1997). See also VAOPGCPREC 3-
2000 (2000) and 7-2003 (2003).
Rating criteria for IVDS
Prior to September 23, 2002, the rating criteria for IVDS
under Diagnostic Code (DC) 5293 were as follows.
A rating of 10 percent is awarded for mild IVDS. A rating of
20 percent is awarded for moderate IVDS, with recurring
attacks.
A rating of 40 percent is awarded for severe IVDS, with
recurring attacks and intermittent relief. A rating of 60
percent is awarded for pronounced IVDS, with persistent
symptoms compatible with sciatic neuropathy with
characteristic pain and demonstrable muscle spasm, absent
ankle jerk, or other neurological findings appropriate to the
site of the diseased disc, with little intermittent relief.
The terms "mild," "moderate" and "severe" are not
defined in the rating schedule; rather than applying a
mechanical formula, VA must evaluate all the evidence to the
end that its decisions are "equitable and just." 38 C.F.R.
§ 4.6.
In this case, the evidence prior to September 23, 2002
includes an April 2000 VA outpatient clinical examination in
which the examining nurse noted complaint of constant and
increasing low back pain radiating to the lower extremities.
There were no recent X-ray studies, computed tomography (CT)
scans, or magnetic resonance images (MRIs) of record. On
examination, the examining nurse observed tenderness to
palpation and some limitation of motion due to pain and
obesity. Straight-leg raising was positive to the right
only, knee jerks were absent, and ankle jerks were 3+ left
and 1+ right.
The veteran was able to heel-and-toe walk without difficulty,
and there was no guarding either on ambulation or while
getting on and off the examination table. The examining
nurse's impression was that of chronic low back pain, rule
out discogenic pain, and the nurse recommended that the
veteran undergo lumbosacral CT scan and X-ray studies.
The veteran was scheduled to undergo CT scan and X-ray
studies at the VA Medical Center (VAMC) later in April 2000,
but he did not report for examination; the veteran might have
been incarcerated at that time.
Based on the evidence, the Board finds that the veteran's
disability prior to September 23, 2002 more closely
approximated "moderate" rather than "severe" IVDS.
While the veteran subjectively reported radiculopathy, there
are no CT or MRI diagnostics of record documenting same, and
the veteran failed to report for examination that could have
resolved the question.
The Board notes in that regard that when a claimant fails
without good cause to report for an examination scheduled in
conjunction with a claim for increase, the claim shall be
denied. See 38 C.F.R. § 3.655(a), (b).
The Board accordingly finds that the evidence does not show
"severe" IVDS with recurring attacks and intermittent
relief as required for the higher 40 percent rating under the
rating criteria for IVDS in effect prior to September 23,
2002.
As of September 23, 2002, the criteria of DC 5293 became as
follows: evaluate IVDS either on the total duration of
incapacitating episodes over the past 12 months or by
combining under § 4.25 separate evaluations of its chronic
orthopedic and neurologic manifestations, along with
evaluations for all other disabilities, whichever method
resulted in the higher evaluation.
For purposes of evaluation under this diagnostic code, an
"incapacitating episode" is a period of acute signs and
symptoms due to IVDS that requires bed rest prescribed by a
physician and treatment by a physician. "Chronic orthopedic
and neurologic manifestations" means orthopedic and
neurologic signs and symptoms resulting from IVDS that are
present constantly, or nearly so.
When rating IVDS under the "incapacitating episode" method,
the following criteria apply. A rating of 10 percent is
awarded for incapacitating episodes having a total duration
of at least one week but less than two weeks during the past
12 months. A rating of 20 percent is awarded for
incapacitating episodes having a total duration of at least
two weeks but less than four weeks during the past 12 months.
A rating of 40 percent is awarded for incapacitating episodes
having a total duration of at least four weeks but less than
six weeks during the past 12 months. A rating of 60 percent
is awarded for incapacitating episodes having a total
duration of at least six weeks during the past 12 months.
When rating IVDS under the "chronic manifestations" method,
orthopedic disabilities are rated using the evaluation
criteria for the most appropriate orthopedic diagnostic code
or codes. Neurologic disabilities are rated separately using
evaluation criteria for the most appropriate neurologic
diagnostic code or codes. The two evaluations are then
combined under the guidance of 38 C.F.R. § 4.25.
When evaluating under this diagnostic code, if IVDS is
present in more than one spinal segment, provided that the
effects in each spinal segment are clearly distinct, each
segment is evaluated on the basis of chronic orthopedic and
neurologic manifestations or incapacitating episodes,
whichever results in a higher evaluation for that segment.
In this case, the evidence from September 23, 2002 includes a
VA examination of the spine in October 2002 during which the
veteran reported pain, discomfort and muscle spasm with
radiation of pain down the right side, plus decreased
sensation and numbness to the right foot. He reported
missing 40 percent of his work due to back pain, including
frequent bed rest.
The examiner noted definite decrease in sensation on the
right lower extremity and numbness in the right foot. Deep
patellar tendon reflexes were slightly decreased,
bilaterally. There was no muscle atrophy. The veteran was
observed to walk with a limp to the right.
The veteran had another VA examination in January 2003 during
which he reported constant pain with recurrent radicular pain
down to the right foot consistent with L3 radiculopathy. The
veteran was observed to walk with a mild antalgic gait but no
limp.
The veteran could ambulate easily on heels and on toes.
There was no palpable paraspinous tenderness and no sciatic
notch tenderness. Lumbar curvature was intact, as was the
quadriceps mechanism. Patellar and Achilles reflexes were 1+
and equal.
There was decreased sensation in the right lower extremity
and right foot. The examiner's assessment was that of
constant low back pain syndrome with recurrent L3 radicular
pain and decreased sensory perception over the right lower
extremity.
The veteran had yet another VA examination in June 2003 in
which he again reported having constant low back pain and
recurrent numbness involving the entire right lower
extremity. He also reported severe acute exacerbations of
low back pain occurring once per month and requiring several
days of bed rest.
However, MRI revealed no spinal stenosis, nerve impingement
or narrowing. The veteran was observed to walk with a mild
antalgic gait. There was palpable low lumbar paraspinous
tenderness but no sciatic notch tenderness. Lumbar curvature
was intact, and the veteran could toe-walk and heel-walk
without difficulty. Quadriceps mechanism was intact, and
patellar and Achilles reflexes were 1+ and equal. There was
decreased sensory perception in the right lower extremity.
In an August 2003 rating decision, the RO granted separate
service connection for the chronic neurological
manifestations of IVDS, i.e., neuropathy of the left and
right lower extremities, each rated as 10 percent disabling.
Accordingly, under the rating criteria in effect from
September 23, 2002, the remaining IVDS disability is rated as
either chronic orthopedic disability or "incapacitating
episodes."
The chronic orthopedic disability is discussed hereinbelow
with "range of motion" analysis.
In regard to "incapacitating episodes," the veteran
reported such episodes to the VA examiner, but there is no
objective evidence showing bed rest prescribed by a physician
and treatment by a physician.
The Board accordingly finds that the criteria for a rating
higher than 20 percent were not met under the rating criteria
for IVDS in effect on September 23, 2002.
Rating criteria for limitation of motion
Until September 26, 2003, lumbosacral spine disorders other
than IVDS could be rated under the provisions of DC 5292
(limitation of motion) or alternatively under the provisions
of DC 5295 (lumbosacral strain).
The schedular criteria of DC 5292 (limitation of motion) are
as follows. A rating of 10 percent is awarded for slight
limitation of motion. A rating of 20 percent is awarded for
moderate limitation of motion.
A rating of 40 percent is awarded for severe limitation of
motion. The terms "slight," "moderate" and "severe" are
not defined in the rating schedule; rather than applying a
mechanical formula, VA must evaluate all the evidence to the
end that its decisions are "equitable and just." 38 C.F.R.
§ 4.6.
For VA rating purposes, normal range of motion of the
thoracolumbar spine is forward flexion to 90 degrees,
backward extension to 30 degrees, lateral flexion to 30
degrees bilaterally, and rotation to 30 degrees bilaterally.
See 38 C.F.R. § 4.71a, Plate V.
The schedular criteria of DC 5295 (lumbosacral strain) are as
follows. A rating of 10 percent is awarded for
characteristic pain on motion. A rating of 20 percent is
awarded for muscle spasm on extreme forward bending, or loss
of lateral spine motion, unilateral, in standing position.
A rating of 40 percent is awarded for severe symptoms, with
listing of the whole spine to the opposite side, positive
Goldthwaite's sign, marked limitation of forward bending in
the standing position, loss of lateral motion with
osteoarthritic changes, or some of the above with abnormal
mobility on forced motion.
When evaluating musculoskeletal disabilities, VA may, in
addition to applying schedular criteria, consider granting a
higher disability rating when functional loss due to limited
or excessive movement, pain, weakness, excessive
fatigability, or incoordination is demonstrated, to include
during flare-ups and with repeated use, if those factors are
not considered in the rating criteria. See 38 C.F.R. §§
4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202
(1995).
The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be
considered in conjunction with the diagnostic codes
predicated on limitation of motion. Johnson v. Brown, 9 Vet.
App. 7 (1996).
In this case, the evidence from September 23, 2002 includes a
VA examination of the spine in October 2002 during which the
range of motion was forward flexion to 70 degrees, backward
extension to 20 degrees, and right and left rotation to 25
degrees with "a great deal" of pain.
The veteran had another VA examination in January 2003 during
which his range of motion was forward flexion to 50 degrees
with pain, backward extension to 20 degrees, left and right
lateral flexion to 20 degrees, right rotation to 20 degrees,
and left rotation to 30 degrees. The examiner's assessment
was that of constant low back pain syndrome with reduced
ranged of motion.
The veteran had yet another VA examination in June 2003 in
which forward flexion to 50 degrees caused pain. The
examiner noted that mid- and lower-back pain was moderate in
severity and range of motion was limited by pain. Repetitive
flexion and extension of the lumbar spine revealed no
weakness, decreased range of motion, fatigability or
incoordination.
Based on the evidence above, the Board finds that the
veteran's chronic orthopedic disorder more closely
approximates the criteria for the current 20 percent rating
under either DC 5292 (limitation of motion) or DC 5295
(lumbosacral strain). The Board particularly notes that the
VA examiner characterized the disability as "moderate"
rather than "severe."
Further, there is no evidence of listing of the whole spine
to the opposite side, positive Goldthwaite's sign, marked
limitation of forward bending in the standing position, loss
of lateral motion with osteoarthritic changes, or some of the
above with abnormal mobility on forced motion as required for
the higher 40 percent rating under DC 5295.
The Board has considered whether a higher rating may be
granted under the provisions of 38 C.F.R. §§ 4.40, 4.45, and
4.59, and DeLuca. However, there is no indication of
additional limitation of function due to the DeLuca factors
beyond those limitations considered in the applicable
schedular criteria.
The Board accordingly finds that the criteria for a rating
higher than 20 percent under the criteria of either DC 5292
(limitation of motion) or DC 5295 (lumbosacral strain) are
not warranted under the criteria in effect prior to September
26, 2003.
Rating criteria for IVDS and limitation of motion from
September 26, 2003
Effective on September 26, 2003, disabilities of the spine,
including IVDS and limitation of motion, have been rated
under a General Rating Formula for Diseases and Injuries of
the Spine.
The criteria of the General Rating Formula are applied with
and without symptoms such as pain (whether or not it
radiates), stiffness, or aching in the area of the spine
affected by residuals of injury or disease. Associated
objective neurologic abnormalities, including but not limited
to bowel or bladder impairment, are evaluated separately
under an appropriate diagnostic code. General Rating
Formula, Note (1).
IVDS, formerly DC 5293, is assigned a new diagnostic code (DC
5243) and is rated either under the General Rating Formula or
alternatively under the Formula for Rating IVDS Based on
Incapacitating Episodes, whichever method results in the
higher evaluation.
The rating criteria of the General Rating Formula for
Diseases and Injuries of the Spine pertinent to the
lumbosacral spine are as follows.
A rating of 40 percent is assigned for forward flexion of the
thoracolumbar spine 30 degrees or less, or favorable
ankylosis of the entire thoracolumbar spine. A rating of 50
percent is awarded for unfavorable ankylosis of the entire
thoracolumbar spine. A rating of 100 percent is awarded for
unfavorable ankylosis of the entire spine.
For VA compensation purposes, the normal forward flexion of
the thoracolumbar spine is to 90 degrees, and the normal
combined range of motion of the thoracolumbar spine is 240
degrees. General Rating Formula, Note (2).
The veteran had a VA medical examination in March 2005 in
which he was able to forward flex to 70 degrees prior to the
onset of back pain. There was no evidence of ankylosis to
any degree. The examiner noted that the veteran appeared to
be significantly exaggerating his low back symptoms.
Based on the evidence, the Board finds that the veteran's low
back degenerative disc disease more closely approximates the
criteria for the current 20 percent rating under the General
Rating Formula in effect since September 26, 2003.
Specifically, the veteran is not limited to flexion of 30
degrees or less, and his spine is not ankylosed to any
degree, as required for any rating higher than 20 percent.
In reaching this conclusion, the Board has considered the
applicability of the benefit-of-the-doubt doctrine. In this
case the veteran's symptoms more closely approximate the
rating for the current 20 percent rating under any applicable
rating criteria, and the benefit-of-the-doubt rule is not for
application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102;
Gilbert, 1 Vet. App. at 55.
ORDER
Service connection for major depression, claimed as secondary
to the service-connected degenerative disc disease of the
lumbar spine, is denied.
A rating in excess of 20 percent for the service-connected
degenerative disc disease of the lumbar spine is denied.
____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs